Ambiguous, confusing and a mess is how the current coronavirus regulations dealing with protest have been described by MPs and peers tasked with scrutinising the government’s record on human rights. And it is the backdrop to the police versus protesters debate that should not be ignored.
In fact, the Joint Committee on Human Rights (JCHR), a cross-party group, concluded that protest has never has been completely illegal during the pandemic, even under lockdown.
This is the framework both protesters and police officers have had to grapple with for the last year, the context within which tensions between the two have risen so high.
The UK government has been keen to emphasise that the police service is operationally independent and it is not appropriate for ministers to instruct forces on how to behave. But the government is responsible for the legislation that the police must enforce.
So what has the legislation looked like? A summary emphasises the government’s inconsistent approach.
During the first lockdown in March 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were imposed.
These regulations banned people from leaving their home “without reasonable excuse” and provided a non-exhaustive list of reasonable excuses. The regulations did not specify engaging in protest as a reasonable excuse.
However, given that the list of exceptions was not exhaustive, any person who left their home in order to protest would be entitled to argue that it amounted to a “reasonable excuse”. It would be for the individual police officer or the courts to determine whether it was a reasonable excuse or not.
From 1 June the restrictions were eased and, for the first time, “gathering” was defined as “when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other”. There remained no exemption for engaging in public protest.
It was under these restrictions that the Black Lives Matter protests and the protests to protect statues and memorials took place.
From 4 July 2020, there was a further easing of restrictions, which introduced an exemption relevant to protest, allowing gatherings of more than 40 people to take place as long as:
The gathering had been organised by “a business, a charitable, benevolent or philanthropic institution, a public body, or a political body”.
The person organising had carried out a health and safety risk assessment.
The person organising had taken all reasonable measures to limit the risk of transmission of coronavirus.
From 14 October, the three-tier system came into effect, which continued the prohibition on gatherings of more than six people in all three tiers. However, for the first time, the regulations expressly introduced an exception to this prohibition for a gathering “for the purposes of protest” – applicable in all three tiers.
This required the organiser to take “the required precautions”, including a risk assessment.
The 24 October anti-lockdown protest in London was broken up by police because police said protesters had not complied with the risk assessment the organisers had been required to complete.
On 5 November, the second national lockdown began and the rules reverted to those that were in force during the first lockdown (including the “reasonable excuse” regulation).
At the end of the second lockdown the government introduced the national three-tier system and, as with the system in place before the second lockdown, these regulations expressly recognised an exception for a gathering “for the purposes of protest”.
From 20 December, the fourth tier of restrictions was introduced, which again prohibited those in the tier 4 area leaving home without reasonable excuse and gathering together in a public place in groups of more than two. The exception for protest that applied in tiers 1 to 3 was removed from the list of exceptions applicable in tier 4.
On 5 January all of England was placed under tier 4 – the third national lockdown. While some restrictions were slightly tightened, in respect of protest under tier 4 the position remained the same – no exception to the prohibition on leaving the home other than the general “reasonable excuse”.
The gathering at Clapham Common on 13 March took place under the third national lockdown.
On 29 March, when lockdown rules were eased in England, protests once again became exempt from the rules against mass gatherings as long as the organiser has taken required precautions, such as social distancing measures.
The JCHR, chaired by Harriet Harman, concluded the “most obvious reason” for the lack of clarity over the legality of protest was that the law that applies to gatherings has frequently changed, and during lockdown left protest to fall within the general defence of “reasonable excuse”. Harman criticised the government for confusing communications.